23 FLRA No. 25
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2185
Union
and
TOOELE ARMY DEPOT
TOOELE, UTAH
Agency
Case No. 0-NG-1215
DECISON AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and concerns the
negotiability of four Union proposals. The proposals all concern leave
during partial closure of the Agency around the Thanksgiving and
Christmas holidays. As submitted, the proposals are as follows:
1. Management will make every conceivable attempt to avoid
forcing any employee to take annual leave or LWOP and will make
every conceivable attempt to assign employees to available work
for which the employee is qualified if employees do not elect to
take annual leave or LWOP.
2. Pursuant to a questionnaire to be mutually agreed upon,
employees will be polled as to whether they desire annual leave,
LWOP or other assigned work.
3. An extremely liberal leave policy will be in effect. No
employee requests for annual leave or LWOP will be denied unless
an emergency exists or work demands leave no other alternatives.
In any event, no requests for annual leave or LWOP will be denied
where there are other employees who want to work and not take
annual leave or LWOP and the employee is otherwise qualified to
perform the work.
4. Prior to forcing any employee to take annual leave or LWOP,
in the event that there are more employees desiring to work than
there is work available, the following procedures will apply:
(a) work assignments amongst employees desiring work will be
given to qualified employees with the greatest seniority; and
(b) before an employee will be required to take LWOP because
the employee does not have sufficient annual leave, upon request
the employee will be advanced annual leave if management has any
reason to believe that the employee will be able to restore
advanced annual leave.
Subsequently, in its Statement of Position, the Agency stated it had
no objection to Proposal 2 and that if the Union agreed to include FPM
requirements concerning the granting of annual leave as part of Proposal
4(b) it would not object to that proposal either. In its Reply Brief
the Union agreed with the Agency's position on Proposal 4(b). Thus, the
issues concerning Proposals 2 and 4(b) are moot and will not be
considered further in this decision.
II. Union Proposal 1
A. Positions of the Parties
The Agency reads the phrase that it "make every conceivable attempt
to assign employees to available work" if they decline to take annual
leave or leave without pay (LWOP) as requiring such assignments. It
also asserts that it would be precluded from assigning available work to
other employees. Therefore, it asserts that the proposal conflicts with
management's reserved rights to assign employees under section
7106(a)(2)(A) and to assign work under section 7106(a)(2)(B) of the
Statute. The Agency also argues that the requirement to assign work
"for which the employee is qualified" similarly interferes with
management's rights because it could result in the assignment of an
overqualified employee at higher pay than necessary.
The Union argues that the proposal merely deals with the impact of
management's decision to partially close the Agency around the
Thanksgiving and Christmas holidays. It understood that the Activity
would make work available to some employees during the periods in
question, and sought to avoid or lessen the impact of closure. It
concedes that an agency has the right to require employees to take
charged leave during such closures under current Authority case law.
B. Analysis and Conclusions
The Authority concludes that Union Proposal 1 is nonnegotiable. By
requiring management to make "every conceivable attempt" to avoid
requiring an employee to take annual leave (A/L) or leave without pay
(LWOP), the proposal effectively could require management to forego its
plan to partially close down if more employees wanted to work (rather
than take A/L or LWOP) than were called for by the management plan. The
second clause would have the same effect. It is undisputed that the
Agency has the right to partially close during holiday periods. The
same decision, under the same Army Civilian Personnel Regulation
involved in this case, led the Authority to determine that an agency
could require employees to take annual leave during such closings.
National Association of Government Employees, Local R14-62 and U.S. Army
Dugway Proving Ground, Dugway, Utah, 18 FLRA No. 38 (1985), petition for
review filed sub nom. National Association of Government Employees,
Local R14-62 v. FLRA, No. 85-2098 (10th Cir. July 23, 1985). Thus the
proposal is outside the duty to bargain because it could result in
depriving management of its rights to require employees to take leave,
and ultimately prevent the closing of operations, contrary to
management's rights to assign employees under section 7106(a)(2)(A) and
to assign work under section 7106(a)(2)(B) of the Statute. In addition,
the "every conceivable attempt" language does not limit the proposal,
because we have consistently held that proposals requiring an agency to
make an effort to accomplish an objective which is outside the duty to
bargain are themselves nonnegotiable. Maritime/Metal Trades Council and
Panama Canal Commission, 18 FLRA No. 43 (1985) (Union Proposal 5).
While intended by the Union as an arrangement for employees adversely
affected by the Agency's exercise of its rights to require employees to
take leave and to partially close down, we find that under the
circumstances discussed above, the proposal is not an appropriate
arrangement within the meaning of section 7106(b)(3) of the Statute.
Thus, where a proposed amelioration of adverse effects of an Agency's
exercise of its rights could totally eliminate the Agency's discretion
to exercise its rights, such proposal amounts to "excessive
interference" with the exercise of management's rights, and is not an
appropriate arrangement. Federal Union of Scientists and Engineers and
Department of the Navy, Naval Underwater Systems Center, 22 FLRA No. 83
(1986). See also American Federation of Government Employees, AFL-CIO,
Local 2782 v. Federal Labor Relations Employees Authority, 702 F.2d
1183, 1188 (D.C. Cir. 1983).
The Agency also argues that the requirement to assign work "for which
the employee is qualified" could result in the assignment of an
overqualified employee at higher pay than necessary. Although we have
already determined this proposal to be nonnegotiable, since the argument
arises later i